People v. Masry

Opinion

JONES, J.

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The People appeal following denial of a motion to reinstate a dismissed theft charge against Edward L. Masry.

Procedural History

In a multiple-count indictment returned by the grand jury on March 28, 1980, Masry was charged with, inter alia, theft by false pretenses (Pen. Code,

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§ 532). After exercising his right to a postindictment preliminary hearing, Masry was ordered to trial. On September 11, 1981, a jury convicted him of theft. Due to juror misconduct, a new trial was ordered. Various proceedings were pending against Masry until June 14, 1984, when the California Supreme Court denied hearing following a decision from this court ordering dismissal of the theft charge on speedy trial grounds.

[1151]

On July 17, 1984, the People refiled the theft charge

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pursuant to section 1388. Masry successfully asked the superior court to dismiss the complaint on the ground the statute of limitations barred prosecution of the theft charge. The court denied the People’s motion under section 871.5 to reinstate the charge.

Discussion

The sole issue on appeal is whether the tolling provisions of section 802.5 apply here to a crime committed and charged (prosecution No. 1) before section 802.5 became effective, where the charge was later dismissed and then refiled (prosecution No. 2). For reasons we shall discuss, we conclude section 802.5 validly applies where, as here, that statute was enacted before the then applicable statute of limitations expired.

The indictment here was filed on March 28, 1980. At that time, section 800 provided: “An indictment for grand theft . . . shall be found, an information filed, or case certified to the superior court within three years after its discovery.”

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